Press Release
October 2, 2007

PRIVATE RIGHTS CANNOT PREVENT
PERFORMANCE OF PUBLIC DUTIES

[Oral Argument at the Supreme Court of Sen. Aquilino Pimentel as counsel
of the Senate of the Republic and of Sen. Manuel Villar, President of the
Senate, October 2, 2007, Case No. G.R. 179275 for Prohibition]

May it please the Court, Mr. Chief Justice, Distinguished Justices of the Supreme Court:

I appear for the respondent Senate and in representation also of the Senate President, Manuel Villar.

Atty. Luis Gana will appear for the minority senators who have filed a separate comment to the petition under question. Between the two of us, we have, as will be explained momentarily, divided the time allotted to the Senate and to the minority senators in equal parts, meaning, I will discuss the issues from the standpoint of the Senate, which I represent, for 10 minutes, and, Atty. Gana, will consume the rest of the time to discuss other points that the minority senators emphasize in their intervention.

Background

For a brief background, allow me to state the following:

On September 6, last, the petitioners filed this case (SC G.R. No. 179275) for prohibition with prayer for a temporary restraining order and/or a writ of preliminary injunction.

The petition seeks to bar three Senate Committees, namely on National Defence and Security; Accountability of Public Officers and Investigations, and Constitutional Amendments from conducting "inquiry/investigation hearings on the so-called Garci tape(s)". The petition anchors its arguments on two grounds:

1. The Rules of Procedure (of the Committees) to conduct inquiries in aid of legislation have not been published and this lack of publication is supposedly "contrary to Section 21, Article VI of the Constitution; and

2. The scheduled hearing on September 7, 2007 and thereafter would be violative of the letter and spirit of Republic Act 4200 or the Anti-Wire Tapping Law.

With permission, I would like to discuss the two grounds sequentially.

Rules not published?

1st, that the Rules of Inquiry and Investigation have allegedly not been published as required by Section 21 of Article VI of the Constitution.

The allegation is not correct.

The Rules had been published in newspapers of general circulation.

In 1992, The Rules of Procedure Governing Inquiries in Aid of Legislation were published in two newspapers of general circulation:

(A) The Philippine Daily Inquirer on August 20, 1992, and (B) The Philippine Star on August 21, 1992.

In 1995, the Rules of Procedure were published again in two newspapers of general circulation:

(A) The Philippine Star on August 24, 1995, and (B) Malaya on the same day, August 24, 1995.

Then, in 2006, the Rules were republished in two newspapers of general circulation:

(A) The Philippine Daily Inquirer on December 1, 2006, and (B) The Philippine Star on the same day, December 24, 2006.

Admittedly, the Rules have not been republished since then. The reason is that:

1. Since there are no changes in the Rules that would need their republication to comply with the requirement of giving due information to the public on what they may expect of Senate investigations.

In this connection, the Senate Secretariat has issued a certification that since 2006, no changes had been introduced into the Rules.

2. The Senate is a continuing body. And there is no need to redo its rules every after the sessions of a given Congress is over;

3. The Rules are also accessible to the public via the internet: www.senate.gov.ph since 1996, and

4. As an additional proof that the Senate does not engage in clandestine investigations of matters of public concern and does not sanction inquiries a la the Spanish Inquisition, the Rules are published in booklet form and are available for free as far as I know from the Senate Secretariat for those who have need for it.

Continuing body

Of the four points just mentioned, let me underscore the fact that the Senate is a continuing body and as such, the Rules that the Senate adopts "remain in force until they are amended or repealed." This is found in Rule LII, Section 137: "These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed."

As a continuing body, the Senate does not have to reorganize itself every time a new Congress is elected by adopting new rules. The constitutional provision under which only one-half of the Senate membership is changed by election in each Congress reveals the intent of the framers that the Senate should be a continuing parliamentary body.

As a study has demonstrated, the beginning of a session in a newly elected Congress, the Senate can indicate its will in regard to its rules in one of three ways:

First. It can proceed to conduct its business under the Senate rules which were in effect in the previous Congress and thereby indicate by acquiescence that those rules continue in their effectivity. This has been the practice in the past.

Second. It can vote negatively when a motion is made to adopt new rules and by such action indicate approval of the previous rule. Third. It can vote affirmatively to proceed with the adoption of new rules.

Website publication

Moreover, it is also our submission that the publication of the Senate Rules in the website is a sufficient compliance of the law. The following provisions of RA 8792, otherwise known as the Electronic Commerce Act of 2000, support our contention: Sec. 4. Sphere of Application. - This Act shall apply to any kind of data message and electronic document used in the context of commercial and non-commercial activities to include domestic and international dealings, transactions, arrangements, agreements, contracts and exchanges and storage of information. Sec. 5. Definition of Terms. - For the purposes of this Act, the following terms are defined, as follows:

f. "Electronic Document" refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. CHAPTER II LEGAL RECOGNITION OF ELECTRONIC WRITING OR DOCUMENT AND DATA MESSAGES Sec. 7. Legal Recognition of Electronic Documents. - Electronic documents shall have the legal effect, validity or enforceability as any other document or legal writing, and - x x x x x x For evidentiary purposes, an electronic document shall be the functional equivalent of a written document under existing laws. SEC. 27. Government Use of Electronic Data Messages, Electronic Documents and Electronic Signatures. - Notwithstanding any law to the contrary, within two (2) years from the date of the effectivity of this Act, all departments, bureaus, offices and agencies of the government, as well as all government-owned and-controlled corporations, that pursuant to law require or accept the filing of documents, require that documents be created, or retained and/or submitted, issue permits, licenses or certificates of registration or approval, or provide for the method and manner of payment or settlement of fees and other obligations to the government, shall - (d) transact the government business and/or perform governmental functions using electronic data messages or electronic documents, and for the purpose, are authorized to adopt and promulgate, after appropriate public hearing and with due publication in newspapers of general circulation, the appropriate rules, regulations, or guidelines, to, among others, specify - x x x x x SEC. 28. RPWEB To Promote the Use Of Electronic Documents and Electronic Data Messages In Government and to the General Public. - Within two (2) years from the effectivity of this Act, there shall be installed an electronic online network in accordance with Administrative Order 332 and House of Representatives Resolution 890, otherwise known as RPWEB, to implement Part IV of this Act to facilitate the open, speedy and efficient electronic online transmission, conveyance and use of electronic data messages or electronic documents amongst all government departments, agencies, bureaus, offices down to the division level and to the regional and provincial offices as practicable as possible, government owned and controlled corporations, local government units, other public instrumentalities, universities, colleges and other schools, and universal access to the general public. It is noteworthy to state that the Supreme Court en banc approved Resolution (A.M. No. 01-7-01-SC) dated July 17, 2001. The Rules took effect on August 1, 2001 RA 8792 mandates all government departments and offices to accept electronic data messages and documents in their transactions within two years from its effectivity. RA 8792 therefore, "gives legal recognition to electronic data messages, signatures, and documents; and in so doing, it puts electronic data messages and digital signatures on the same legal status as paper-based documents and manually executed signatures. And It lays down the State policy to promote the universal use of electronic transactions in the government and by the general pubic" (culled from Guide to the Philippine Electronic Commerce Act (lawnormscode)

Hearings violate RA 4200? I will now discuss with permission of the Court the 2nd ground for the petition that:

3. The scheduled hearing on September 7, 2007 and thereafter would violate the letter and spirit of Republic Act 4200 or the Anti-Wire Tapping Law.

Nothing can be farther from the truth.

To elucidate, let me immediately say that the hearing on September 7 had already taken place.

Thereafter, other hearings were held, including the hearing that was done yesterday, October 1.

And the hearings did not and the future ones will not violate the letter or the spirit of Republic Act 4200 or the Anti-Wire Tapping Law.

It is true that the law prohibits wiretapping of telephone conversations, the possession, and use of wiretapped materials.

No legal standing

But before we discuss the details of the law, may I interject at this point that the petitioners do not have the legal standing to question the inquiry in aid of legislation or the investigation that the Senate is conducting on the so-called Garci tapes.

Clearly, the petitioners are not the persons whose conversations are the subject of the Senate inquiry or investigation. The persons who may legitimately complain against the violation of their rights - if any - are alive and present in the country, namely, "Ma-am" and "Garci".

It is "Ma'am" and "Garci" who may cause the prosecution of any person who might have violated their rights to privacy under Republic Act 4200.

And as Section 1 of Republic Act 4200, itself, provides, it is also "Ma-am" and "Garci" who may legitimize the tapping, use or possession by other persons of their communication or spoken word by authorizing the said acts.

To repeat, if "Ma-am" and "Garci" can legitimize the tapping, use or possession of their communication or spoken word by other persons, they may also withhold the legitimization and consequently criminalize the acts of the violator of their rights under Republic Act 4200 by suing the latter or taking such moves as are necessary to prevent the use of the illegally tapped materials.

"Ma'am" and "Garci" have not made any such move.

Waiver

Therefore, it is safe to conclude that they have waived whatever rights they have under Republic Act 4200.

Since it is their privacy rights that are claimed to have been violated, nobody can sue for the vindication of those rights on their behalf. Unless, perhaps, if "Ma'am" and "Garci" are minors or are incapacitated to do so in other ways.

In sum, under the circumstances, the petitioners cannot claim that it was their rights that had been violated. Neither may they, then, initiate the instant petition.

Ruling case: direct injury

As was held in the case of the Senate of the Phil. v. Ermita (G.R. No. 169777, etc., April 20, 2006), the Honorable Court said --

Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to challenge the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.

It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and personal. xxx

xxx For it to be accorded standing on the ground of transcendental importance, however, it must establish (1) the character of the funds (that it is public) or other assets involved in the case, (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government, and (3) the lack of any party with a more direct and specific interest in raising the questions being raised. xxx Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution. xxx (Cited cases omitted; Emphasis Ours).

The case just cited emphasizes the direct, personal and concrete injury test as the basis of the right of any complainant to bring suit as a citizen. The direct, personal and concrete injury test has been sustained in a long and repetitious list of cases on the issue

Missed opportunity

Moreover, the petitioners had not raised the constitutionality issue at the "earliest opportunity" which was, to the best of my recollection, as early as June 26, 2005 when Secretary Ignacio Bunye played the tapes in question before the Malcanang Press Corps.

Neither did they raise the issue when the House started its investigations on the Garci Tapes on June 30 nor when the Senate did likewise in a number of instances in the same year, 2005.

Put differently, the petitioners cannot assert the rights of "Ma'am" and "Garci" to stop the Senate proceedings on the questioned tapes.

And even if they had that right, they are barred from doing so now because they did not raise the issue at the earliest opportunity.

To repeat: the right may be waived

Since those privacy rights are personal to "Ma'am" and "Garci", those same rights are, therefore, waivable and under the circumstances must necessarily be considered to have been waived. Otherwise, the power and the right of the Senate to conduct inquiries or investigations in aid of legislation as a part of its functions of legislative oversight could be rendered nugatory on the mere claim of any Santiago or Oswaldo that he could assert the rights of other parties who are exclusively enumerated in and capacitated by Republic Act 4200 to bring or prevent a proper suit whenever their communication or spoken word had been tapped, used or possessed by other persons illegally.

The wording of the law sustains the view we have just advanced: "it is unlawful for any person not being authorized by all the parties to any private communication or spoken word, to

1. tap any wire or cable, [or by using any other device or arrangement]: 2. secretly overhear, 3. intercept, or 4. record such communication or spoken word by using any device commonly known as Dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described", and 5. knowingly possess: any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; 6. replay the same for any other person or persons; 7. communicate the contents thereof, either verbally or in writing, or 8. furnish transcriptions thereof, whether complete or partial to any other person, provided that the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Sec. 3, hereof, shall not be covered by this prohibition. Like private crimes

Since it is the parties to a tapped communication or conversation who are empowered by Section 1 of Republic Act 4200 to legitimize the prohibited act or acts, it follows that it is they alone who can claim the right to prosecute the offenders under the law. If we are allowed to make a comparison, we may, perhaps, liken the right of the parties to prosecute under Republic Act 4200 to the right of the offended parties to prosecute private offenses like adultery or rape before the latter was converted into a public offense.

It is true that Sec. 4 of RA 4200 provides that: "Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation,

No basis to stop Senate inquiry

Nontheless, we respectfully submit that the current investigation in the Senate on the so-called Garci tapes cannot be legally prohibited or stopped. At this point, though, allow me to state in passing that from the looks of it, Section 4 appears to be an unfortunate attempt to emasculate or weaken the legislative power of oversight that the Constitution, itself, invests upon Congress. Section 4 purports to prevent Congress from using in evidence any illegally tapped material even in legislative hearings or investigations. And if they do, the necessary implication is that they may be questioned or held liable in other places than in Congress, itself.

That, if I might suggest, runs counter to the second sentence of Section 11 of the Constitution that reads as follows: Section 11 (2nd sentence). No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.

But so as not to unduly weigh down the instant proceedings by this passing or transient observation, perhaps, the issue of whether or not a law may trump a constitutional power vested in the legislators in the discharge of their functions, could be threshed out in a proper, future suit that more directly and appropriately impugns the constitutionality of Republic Act 4200.

Aside, therefore, from the reasons earlier adverted to, we respectfully submit the following:

1. There is no showing yet that the Garci tapes had been illegally tapped.

2. The prohibition against disclosure of even wire tapped materials is not absolute.

To repeat, the opening lines of RA 4200 unmistakably set out its non-absolute character and clearly admit of an exception. The tapping of conversations or communications becomes "unlawful" only if the act is not authorized by the parties to any private communication or spoken word".

3. It is our submission that the authorization to tap, listen to, over-hear or record their private communication or spoken word may be given by all the parties to it expressly or impliedly.

The authorization may be expressly done when the parties - whether public or private personalities - to the private communication or spoken word do so in writing or verbally or in any explicit manner provable in law.

The authorization may also be done impliedly when the parties to the tapped private communication or spoken word fail to make timely and express objections to the use or publication of the tapped private communication or spoken word.

National interest over privacy right

4. The implied authorization may all the more be reasonably deduced when the parties to the tapped private communication or spoken word are public officials and the subject matter of the tapped private communication or spoken word relate to matters of national interest and are polluted by criminal undertones. Under the circumstances one of the parties whose voice was recorded was "Ma'am". And "Ma'am" had already admitted - albeit belatedly that indeed it was her voice at one end of the line when her conversation or conversations with Garci were tapped. And "Ma'am" said on June 27, 2005 over television that she was "sorry", and that "it was a lapse of judgment. "Ma'am" is no less than the President of the Republic and the party at the other end of the line has been publicly known for over a year now as Garci or Virgilio Garcillano, a Commission on Election commissioner at the time the conversation or conversations were made. Incidentally, Garcillano did not stop the playing of the tapes in the investigations of the House of Representatives. The most that he did was to file in the Supreme Court a petition to prohibit the report of the House from including the questioned tapes. This, he did, on November 25, 2005.

Elections = national interest

The elections of 2004 were and are matters of national interest. Hence, it follows that the conversation or series of conversations of the two public officials dealing with aspects of the said elections under the circumstances in which these were tapped cannot now enjoy the privacy that the Constitution endows upon conversations of private persons concerning private topics.

This is one egregious example where the privacy of communications must give way to the right of the people to know what their public officials do. Necessarily, in this instance, the accountability of public personalities to the people must be given full play over and above the formers' right to privacy. Even the Bill of Rights in the Constitution that speak of the inviolability of private communication and correspondence admits of exceptions right in the wording of Article III, Section (1):

"The privacy of communication and correspondence shall be inviolable except (a) upon lawful order of the court, or (b) when public safety or order requires otherwise" and I might underline, "as prescribed by law."

It is our submission that only when any evidence is obtained in violation of Republic Act 4200 and the Constitution that it is rendered inadmissible. But even that conclusion may be modified when public interest is involved as it is involved in the current investigation of the Garci tapes by the Senate. Or when the tapping of conversations or the spoken word of certain persons is authorized by them or by the Court in the 10 cases specified in Section 3 of Republic Act 4200 [Treason, espionage, provoking war, piracy, mutiny, rebellion, sedition, conspiracy to commit sedition, kidnapping & offenses against national security under Commonwealth Act No. 616.

No violation

4. We submit that at this point neither is there any extant evidence that shows that Article III (1) of the Constitution has been violated so as to render its inadmissibility in the proceedings that have started in the Senate.

Petition defects

In resume, we submit that the petition suffers from two things.

One, from a lack of a factual basis when it alleges that the Rules of the Senate pertinent to inquiries or investigations in aid of legislation had not been published because the Rules were duly published; and

Two, from a lack of legal or constitutional basis when it relies on Republic Act 4200 and Article III of the Constitution because the circumstances under which the violation is alleged to have been done do not automatically invest the petitioners with the right to assert the private rights of "Ma'am" and "Garci" and thereby enable them to validly seek to prohibit or bar the Senate from conducting an inquiry or investigation in aid of legislation on the Garci tapes.

Over all, may I submit that the contents of the so-called Garci tapes have entered the public domain and whatever their pretentions to privacy of communications had been decimated by their having been played over radio and television and having been reported and discussed in several newspapers that defy counting.

Nebulous grounds

To allow them to do so on such nebulous grounds would stand on its head the senatorial oversight power vested on Congress that helps ensure that the powers of the Executive Department and the Commission on Elections are kept within the bounds of the law and the Constitution.

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